Appeals Court rules for officer

Saturday

Mar 2, 2013 at 6:00 AM

By John J. Monahan TELEGRAM & GAZETTE STAFF

A three-member panel of the state Appeals Court has upheld an arbitrator and Superior Court rulings that overturned the firing of an off-duty Worcester police officer who pointed a handgun at three teenagers prowling his neighborhood and allegedly struck two of them.

The city’s dismissal of the patrolman, David W. Rawlston, after the April 2007 incident, initially went to an arbitrator, who ruled the dismissal was unwarranted and ordered the officer reinstated in 2008 with full back pay and benefits.

While the Appeals Court ruling upholds the arbitrator’s decision, lawyers for the city said Friday they plan to appeal the case further to the Supreme Judicial Court.

Mr. Rawlston was not reinstated based on the 2008 arbitration decision and remains off the police force.

After the arbitration ruling, he was fired a second time because he no longer had a license to carry a firearm after Police Chief Gary J. Gemme refused to issue a gun license to him.

The police chief cited the allegations lodged against the officer from the incident with the teenagers and claims that the officer made false statements in the gun application as reasons for denying the gun permit.

While the issue of his initial firing would remain the subject of the further appeal to the SJC, lawyers for the city are also arguing an appeal over the gun license issue in a separate case now before the Suffolk Superior Court, which heard arguments on the case on Feb. 13.

In the written decision handed down Friday, the Appeals Court rejected city arguments that the arbitrator and the Superior Court erred in overturning the patrolman’s dismissal.

The arbitrator had ruled that the officer acted reasonably when he ordered three teenagers to lie face down on the street in front of his home.

The officer claimed he ordered them to the ground after he confronted the youths and they had fanned out in a threatening manner as they approached. The officer allegedly hit one in the head with the handgun and struck another after they were on the ground, but neither were injured and they were released after other police arrived on the scene.

The arbitrator also concluded that the officer struck the youth with the gun inadvertently, and dismissed city claims the officer lied about details of the incident. The arbitrator determined the officer’s statements were instead misunderstood by investigating police officers.

Lawyer Tim D. Norris, representing the city in the appeal, argued that excessive force was used by the police officer, in violation of the city’s public policies as well as federal civil rights protections, and said the officer’s striking of the two youths with his gun “was not inadvertent.”

The Appeals Court, however, said there was no legal basis to overturn the Superior Court ruling in the case, which also sided with the claims of the New England Police Benevolent Association, the union representing Mr. Rawlston.

The Appeals Court ruling cited the lower court determination saying the arbitrator had “disagreed with every general fact and legal conclusion of significance on which the decision to terminate Rawlston was based.”

Mr. Norris said the Appeals Court ruling was not unexpected but that the city hopes the SJC will place more weight on the broader public policy issues raised by the case.

“The crux of the issue is that the lower courts have refused to decide whether Mr. Rawlston’s behavior violated these children’s constitutional rights by pointing his gun and using other force against them,” Mr. Norris said. “Instead they left that determination to the arbitrator,” he said.

“These questions are too far-reaching and important to be determined for us by arbitration. The city needs to exhaust the appeals process, which includes seeking further appellate review from the SJC,” Mr. Norris said.